If a Kentucky lawyer is subpoenaed by a prosecutor to testify or produce evidence about a client before a grand jury, how should the lawyer respond?

Plain-English summary

Several defense attorneys asked the Committee whether prosecutor subpoenas seeking a lawyer's testimony or evidence about the lawyer's own client are proper, and whether they may appear and respond by asserting claims of privilege. The Committee concluded that whether such a subpoena is appropriate in a given case, and the conduct of the prosecutor seeking it, are questions of law outside its jurisdiction, which reaches only the propriety of the inquiring lawyer's own future conduct. It pointed to United States v. Klubock and a 1986 ABA House of Delegates resolution for the limits courts and rule-making authorities might place on such subpoenas.

On the lawyer's own duty, the opinion concluded that the attorney-recipient must respond by asserting any privilege, principally the attorney-client privilege, and may resolve doubts about its applicability in favor of the client. The lawyer should insist on a court order resolving the issue and may challenge that order to the extent good-faith arguments can be advanced as to its invalidity, before providing testimony or documents. The Committee anchored this to DR 4-101(C)(2) and then-Proposed Kentucky Model Rule 1.6(b)(4).

Procedurally, the opinion stated the privilege or other objection may be presented by a motion to quash, or, in the alternative, the lawyer may assert the privilege and demand a court order before appearing or at the appearance, prior to testifying or providing evidence.

Currency note

This opinion was issued in 1987 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer simply comply with a grand-jury subpoena seeking information about a client?

A: No. The opinion concluded the lawyer must assert any applicable privilege, may resolve doubts about its applicability in favor of the client, and should insist on a court order before providing testimony or documents.

Q: Will the ethics committee decide whether the prosecutor's subpoena is proper?

A: No. The opinion stated that whether the subpoena is appropriate, and the conduct of the prosecutor in seeking it, are questions of law outside the Committee's jurisdiction, which reaches only the inquiring lawyer's own future conduct.

Q: How may the lawyer raise the privilege procedurally?

A: The opinion said the objection may be presented by a motion to quash, or alternatively by asserting the privilege and demanding a court order before or at the appearance, prior to testifying or producing evidence.

Background and rules framework

The opinion applies DR 4-101(C)(2) of the former Code of Professional Responsibility, which permits disclosure of a client's confidences when required by law or court order, and references then-Proposed Kentucky Model Rule 1.6(b)(4), the analog under the Rules of Professional Conduct that the Kentucky Bar later adopted. It treats the attorney-client privilege as the lawyer's basis for resisting compelled testimony while leaving the legal validity of any particular subpoena to the courts.

Citations and references

Rules of Professional Conduct:

• DR 4-101(C)(2) (former Code; disclosure required by law or court order)
• MR 1.6 (proposed Kentucky analog, Rule 1.6(b)(4))

Statutes and rules:

• KY R.Cr.P. 7.02; Kentucky Rule of Criminal Procedure 17
• F.R.Cr.P. 17

Cases:

• United States v. Klubock, 639 F. Supp. 117 (D. Mass. 1986), limits on subpoenas to defense counsel

Other opinions cited:

• ABA House of Delegates Resolution (Feb. 5-11, 1986); U.S. Attorneys' Manual § 9-2.161(a)

See also

• ABA Formal Op. 473: Subpoenas for Client Information
• ABA Formal Op. 94-385: Subpoenas of a Lawyer's Files

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-315.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-315
Issued: January 1987

This opinion was decided under the Code of Professional Responsibility, which was
in effect from 1971 to 1990. Lawyers should consult the current version of the Rules
of Professional Conduct and Comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

What is the proper response for an attorney who is subpoenaed by a prosecutor to
give testimony or supply evidence regarding his or her client before a Grand Jury?

Answer:

See discussion.

References:

KY.R.Cr.P. 7.02; F.R.Cr.P. 17; U.S. v. Klubock, 639 F.Supp. 117 (D.Mass. 1986);
ABA Resolution (Feb. 5-11), 1986); U.S. Attorneys' Manual § 9-2.161 (a); DR
4-101(C)(2); Proposed Kentucky Model Rule 1.6(b)(4).
OPINION

Several defense attorneys have contacted the Committee regarding the above question.
The principal question posed by the attorneys is whether such subpoenas are proper, and whether
they may properly appear and respond by asserting claims of privilege.
Such subpoenas presumably issue under the authority of Kentucky Rule of Criminal
Procedure 17. Whether such a subpoena is appropriate in a given case is a question of law. In
addition, the conduct of the prosecutor seeking such a subpoena is not properly before us,
inasmuch as our "jurisdiction" is limited to questions relating to the propriety of the requestor's
own future conduct. As to limitations that might be placed on such subpoenas by the Courts or
other rule-making authorities, see United States v. Klubock, 639 F.Supp. 117 (D.Mass. 1986);
Resolution of the ABA House of Delegates (February 5-11, 1986). Cf. United States Attorneys
Manual § 9-2.161(a).
The attorney-recipient of such a subpoena must respond by asserting any privilege (i.e., the
attorney-client privilege) and may resolve doubts regarding the applicability of the privilege in
favor of the client. The attorney should insist on a court order resolving any such issue, and may
challenge the court order to the extent that good faith arguments can be advanced as to its
invalidity, prior to providing testimony or documents. DR 4-101(C)(2); Proposed Kentucky Model
Rule 1.6(b)(4).
The assertion of any privilege, or the presentation of any other objection to the subpoena,
may presumably be made by a motion to quash. In the alternative, the attorney may assert the

privilege and demand a court order before appearing or at his or her appearance, prior to testifying
or providing evidence.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.